Israel's High Court of Justice on Monday rejected an urgent request for an interim order halting construction on new student dorms at Tel Aviv University, after an ancient Muslim cemetery was discovered at the site.
Judge Uri Shoham ruled that the construction works at the site did not harm in any serious way, if at all, the right to protect the dignity of the dead, and do not justify halting work on the project.
Shoham said his decision was influenced by the social and economic importance of the construction project, noting the difficulty experienced by students in light of the high cost of housing and the benefits of encouraging higher education.
The suit was filed in July by Muasasat Al-Aqsa, a group dedicated to preserving Islamic holy sites, after the graves were discovered by the Israel Antiquities Authority at the site in northern Tel Aviv. According to Muasasat Al-Aqsa, the nature of the graves, which date back to the Ottoman period, is consistent with Muslim burial practices.
Until 1948, the area on which the project is being built belonged to the Palestinian village of Sheikh Munis. Later, the university was built around the site.
In court, the university claimed that continuing work at the site would not cause harm, committing itself not to conduct work on the part of the site where the graves were discovered until receiving new instructions from the Antiquities Authority. It also argued that a stop-work order would cause serious economic damage to the project, in which several hundred million shekels have been invested.
In his ruling, the judge said "The importance of protecting the dignity of the dead, which is derived from a person's right to dignity while still alive, should not be taken lightly."
However, he added that the right, which is derived from the Basic Law on Human Dignity and Liberty, is not "an absolute right," noting that in this case it "clashed with the right to protection of property and other important public interests."
He also noted that the suit was not brought by family members of the dead, but by a public interest group, and thus ruled that the right to protect the dead was relatively limited.
He also argued that the suit referred to potential harm of additional, as-yet-undiscovered graves which might be located at the site, and not to a recognized cemetery to which the Muslim community is sentimentally attached.
He added that there is no consensus in Muslim Sharia law about whether or not it is permitted to build over ancient cemeteries, and that he was convinced that the university and the contractors had done their best to mitigate any harm to the dignity of the dead.
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